Thursday, June 28, 2012

Did the Supreme Court just strike down No Child Left Behind?

One of the less-discussed parts of today’s ruling on Obamacare involved the Affordable Care Act’s expansion of Medicare. Under the Act as written, if a state chose not to participate in the expansion of Medicare, it would forgo not just the money that would fund the expansion, but also the federal funding of its existing Medicare programs. The Court limited that aspect of the Act, prohibiting the federal government from withholding existing funding in retaliation for a state’s refusal to take part in the expansion. According to Chief Justice Roberts’s opinion, “Congress cannot simply ‘conscript state [agencies] into the national bureaucratic army.’” Seven of the nine Justices, some writing separately, agreed that the federal government could not condition Medicare funding in this way.

The federal No Child Left Behind Act also conditions continued receipt of pre-existing federal funding on compliance with new “reforms.” There are several distinctions that could justify treating NCLB differently than the Medicare expansion – most importantly, federal education funding makes up a smaller portion of the state’s budget than federal Medicare funding does, and so the threat of withholding it might not rise to the level of being “so coercive as to pass the point at which ‘pressure turns into compulsion.’” But it certainly opens the door to an argument that NCLB is an unconstitutional use of Congress’s spending power.

On the one hand, the threat of losing federal education funding was compelling enough that none of the fifty states chose not to adopt the federal program. To get the federal money, states have undoubtedly pursued policies that they wouldn’t otherwise have chosen to pursue – that’s the whole point of making funding conditional. Recently, for example, our state’s Education Director admitted that there was little evidence to support some of the proposals he was making, but that they were nonetheless necessary to get the federal NCLB waiver and the accompanying “relief for schools.”

On the other hand, would it really be so hard for a state to pass up federal education funding and the (often expensive) mandates that go with it? As Roberts writes, “In the typical case we look to the States to defend their prerogatives by adopting ‘the simple expedient of not yielding’ to federal blandishments when they do not want to embrace the federal policies as their own. . . . The States are separate and independent sovereigns. Sometimes they have to act like it.” When it comes to No Child Left Behind, I wish they would act like it.


Chris said...

This paragraph from Roberts's opinion certainly brings No Child Left Behind to mind:

"When Congress compels the States to do its bidding, it blurs the lines of political accountability. If the Federal Government makes a controversial decision while acting on its own, 'it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns outto be detrimental or unpopular.' But when the Federal Government compels the States to take unpopular actions, 'it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.' For this reason, federal officeholders may view this 'departur[e] from the federal structure to be in their personal interests. . . as a means of shifting responsibility for the eventual decision.' And even state officials may favor such a 'departure from the constitutional plan,' since uncertainty concerning responsibility may also permit them to escape accountability. If a program is popular, state officials may claim credit; if it is unpopular, they may protest that they were merely responding to a federal directive." (Emphasis mine; citations omitted.)

Chris said...

Lawrence Tribe on the Medicare portion of the decision:

"Roberts’ opinion for the seven members of the Court on this point was careful to point out that its holding was limited to the Affordable Care Act and did not fix a definite line for other spending conditions going forward. But the decision will surely be applied in many contexts by the lower courts, and the Chief Justice failed to make clear whether it was the sheer size of the potential financial penalty, the fact that the penalty for failure to participate in a new program was assessed against funding for an existing program, or a combination of those two factors that ultimately determined the outcome here. If the inordinate size of the financial penalty dictated the Court’s resolution, Congress likely will face little constraint going forward—state budgets, after all, are so tight that a threat of even a small deprivation in federal funding will usually suffice to persuade states to bend to federal goals. Predicting how the application of a line between funding new and old programs will affect other federal regulatory efforts, however, is much more difficult."

Chris said...

Oops -- That should be Laurence Tribe.

Karen W said...

Chris--I posted a reply at

Chris said...

Karen -- That's a great post. (Here's the clickable link.) Tribe seems to have hit the nail on the head: "even a small deprivation in federal funding will usually suffice to persuade states to bend to federal goals."

Duane Swacker said...


Could you please clarify which federal program you are referring to in: "On the one hand, the threat of losing federal education funding was compelling enough that none of the fifty states chose not to adopt the federal program." I'm confused as in your post you seem to be talking not only of the NCLB but also RATT (Duncan's mess). Some of the states have chosen not to go after the RATT funding-"Forty states and the District of Columbia eventually applied for funding," see:


Chris said...

Duane -- Yes, I'm talking about NCLB. It's true that some states chose not to pursue RTTT, which (as I understand it) was more of a gamble than the outright conditional funding of NCLB.